Sharing video game content: between the publisher's monopoly and recognition of the player-performer

What sets video games apart from other art forms is their deeply interactive nature and the legal consequences that flow from the player’s actions.

While the case of mods helped us understand the effects of player interactivity on the structure of a game, sharing video game content is the second most important form of interaction. We will therefore examine, in law and in fact, how creating content from a video game work fits into the existing legal framework.

I. The publisher’s complete monopoly

Before even asking what rights the player has, we must start from a simple observation. The publisher holds a complete monopoly of exploitation over its work. This monopoly structures the right of reproduction and the right of performance.

The right of reproduction is defined in Article L. 122-3 of the French Intellectual Property Code as “the material fixation of the work by any process that allows it to be communicated to the public indirectly”. Performance, for its part, is set out in Article L. 122-2 of the same code, and consists in communicating the work to the public by any process.

The Court of Justice of the European Union clarified this criterion by adding the notion of a “new” public, understood as “a public that was not taken into account by the copyright holders when they authorised the initial communication to the public”. Thus, a player who broadcasts their gameplay performs both an act of reproduction, by fixing the work on platforms, and an act of performance, by making it available to the public (CJEU, 13 February 2014, C-466/12).

Following this protective logic to the letter, let’s plays and other forms of external interactivity are therefore formally prohibited. This is in fact what allowed Nintendo to restrict such broadcasts at first.

However, the law, effective as it may be, does not match the community practice of video games. Publishers quickly understood the economic value of external interactivity and, through contractual practices, gave their consent to the use of their intellectual property. In 2018, Nintendo changed its policy and allowed players to create videos that “contain your commentary and the expression of your creativity”.

This wording is revealing, since the publisher implicitly acknowledges a performance by the player, who then elevates the mere broadcast with a personal contribution. This is reminiscent of the conditions for performer status under Article L. 212-1 of the French Intellectual Property Code. The fact remains that the player’s contribution is still essentially subject to the publisher’s prior authorisation, which leads us to ask what exceptions the law might offer them.

II. Possible exceptions to copyright

The question of copyright over player interactivity invites us to examine the exceptions the player might rely on to broadcast their playthrough freely, without being subject to the publisher and its monopoly. While tolerance is the norm in practice, nothing legally prevents a publisher from reproducing a policy similar to Nintendo’s before 2018.

Three exceptions deserve examination.

A. Short quotation

The short quotation exception requires a brief reproduction, justified by a critical or informative purpose. Applied to let’s plays, it seems difficult to invoke: in most cases, the whole work is broadcast. For more critical content, such as VideoGameDunkey’s short reviews (between 5 and 10 minutes), the question arises differently, but remains complex. Moreover, since this creator is American, he benefits from the fair use exception, which is more flexible and better suited to these uses; an exception that does not exist in French law.

B. Parody

The parody exception requires a humorous intention. A player who uses a game to create comic content could potentially rely on it. Machinima is particularly illuminating here: defined as “an artistic production that uses the characters of a video game as a puppeteer would use puppets to put on a show”, it meets the conditions of this exception, insofar as the original work is not simply reproduced in its entirety, but reshaped as the essence of parodic expression.

Beyond the exception, machinima also meets the conditions for performer status.

C. An exception specific to video games?

The fact remains that, owing to the interactive nature of video games, merely broadcasting one does not replace the gaming experience for the consumer. This singular observation could ground a specific exception for the performance and reproduction of video game works, whose broadcasting serves first as a marketing tool for publishers and a creative vehicle for players, rather than as a deliberate infringement of copyright.

This logic is specific to video games. Other art forms, notably cinema, are heavily affected by this type of unlawful act. The recent leak of the animated film Avatar Aang shows that merely broadcasting a film has radically different economic effects from those of a video game. Conversely, Subnautica 2, available in early access since 14 May 2026, sold two million copies in just 24 hours, despite pirates being able to play the game a few days before its official release.

These exceptions, whether written into law or still taking shape, do not solve everything. They leave open the question of the legal nature of the player’s performance itself and of the possible recognition of their own rights.

III. The legal nature of performing a video game work

Traditionally associated with the performing arts, the performer’s neighbouring right could theoretically apply to players because they broadcast their playthroughs to an audience. A strict reading of Article L. 212-1 of the French Intellectual Property Code defines a performer as “the person who acts, sings, recites, declaims, plays or otherwise performs a literary or artistic work, a variety act, a circus act or a puppet show”. The neighbouring rights that flow from this are not “second-class” rights. They protect those who, without being the author of the work, are essential to its communication to the public.

Starting from this definition and the opening it allows, including the player as a performer through their execution of the video game work can be considered.

Nevertheless, such a classification requires the personal nature of the performance. This is what emerges from the ruling of the first civil chamber of 24 April 2013, which refused performer status to participants in a reality TV show. The term “artificial”, used in that ruling to describe the candidates’ supposed performance, could, if applied to video games, clarify the absence of this status for a player who merely executes the gameplay “mechanically”. This is the position defended by Audrey Lebois, senior lecturer (HDR) at the University of Nantes, at the Fête du Droit 2024, ruling out the possibility of performing a video game work by simply repeating game mechanics.

The situation is quite different when the player offers a genuine personal contribution when communicating the work to the public. In streaming, YouTube videos and other performances, the player produces what amounts to a genuine performance, which can be appreciated as such by the public and by the law. If such a classification were one day adopted by the courts, it would in no way compete with the rights holder’s copyright in the protected video game work, but would highlight the need to treat these performances as sources of exploitation rights for the player-performer.

IV. Video game performance as an interpretation of the work

It remains to be determined, in practice, which video game performances are eligible for protection. The player’s personal contribution is the key element. And does this contribution not show itself, in content creation, through the challenges the player sets themselves or the way they make the game mechanics their own?

When the video creator TheGreatReview passionately recounts the quest for the “Legend of Glitterbeard” in Sea of Thieves, he does not merely follow the game’s script. He makes the work his own and offers a personal interpretation of it through his narration, his tone, his staging and a touch of storytelling that belongs to him. In the same vein, the YouTube series « À la Recherche d’un Monde qui n’Existe Pas », produced in Minecraft, illustrates this logic: a video game environment used to build an original story, with an interpretation that goes far beyond a mere gameplay demonstration.

This personal contribution is particularly marked in speedrunning. This community practice, which consists in finishing a game as fast as possible, relies on shortcuts, exploits and often well-known glitches. But it is up to the player to master them and execute them in a way that brings out their own personality. In this sense, the Paris Court of Appeal accepted that it is possible to “perform a musical composition using a computer by choosing pre-recorded sounds”, reinforcing the idea that the player’s choices, even when based on known flaws, can constitute a personal interpretation.

The comparison with a musician can go even further: this practice requires mastery of an instrument which, here, takes the form of the video game itself.

A. The let’s play

One of the most striking cases of interactivity is the let’s play. The first major category of video game viewing, it consists of a player broadcasting their gameplay from beginning to end.

In itself, a let’s play is difficult to classify as a performance. That is why we need to look at the actions the player takes. They bring the characters to life, make decisions according to their own wishes, and when the game has no voice acting, they choose the characters’ voices. The example of Undertale is striking: the let’s player gives the characters a voice based on how they imagine them, directly interpreting the game and its digital inhabitants to offer a personal reading of the work. The YouTube channel Euro Brady takes this logic even further: its creator, a psychologist, plays narrative games by adopting the characters’ point of view and analysing their mental states. His let’s play of Slay the Princess is the perfect illustration: he does not simply play the game, he turns it into an experience, combining professional expertise and personal interpretation.

B. Esports

In esports, the player comes close to being a performer. Whereas footballers have not been classified as performers because they do not perform an original work, competitive video game players could be, insofar as they do perform such a work and bring a personal performance to it. Players such as Faker in League of Legends or Mongraal in Fortnite have an instantly recognisable style and often improvise during competitive matches. Their execution therefore cannot be equated with a mere slavish application of the game mechanics.

While this classification remains purely theoretical in the absence of confirmation by the courts, it is essential for understanding the issues at stake between the publisher’s copyright, which retains full rights over its work, and the player’s possible neighbouring rights. The latter could have rights over the broadcasting of their performance, creating a cascade of rights: the player would need the publisher’s authorisation to broadcast their playthrough, while the publisher would need to acquire the rights from the players to do the same.

As the law currently stands, the publisher’s primacy prevails, even though it is the player who activates the work. Rights are generally governed contractually by terms of use or EULAs, instruments that publishers wield with a freedom that sometimes goes beyond what the law actually allows.

Conclusion

In practice, publishers allow video games to be broadcast. While they can still, in theory, prohibit any reproduction or performance of their works, the community nature of video games and their interactivity through the player force publishers to be accommodating about the use of their intellectual property.

Bibliography

Legislation

• French Intellectual Property Code

Case law

• CJEU, 13 February 2014, C-466/12

Legal scholarship

Books

• J. Groffe-Charrier and B. Charrier, Le jeu vidéo et le joueur, Dalloz, 2022
• N. Binctin, Droit de la propriété intellectuelle, 5th ed., LGDJ, coll. Manuel, Paris, 2018, No. 201
• J.-P. Savoie, Droit d’auteur et jeux vidéo, 2016

Dissertations

• H. Jan, La relecture du régime de l’artiste-interprète de l’audiovisuel face aux nouvelles techniques numériques, dissertation, 2023
• B. Galopin Dess, Jeux vidéo et droit d’auteur, dissertation, Multimedia and IT Law, Université Paris 2 Panthéon-Assas, 2003
• T. Espilondo, Le statut et les droits relatifs aux créations réalisées par les joueurs de jeux vidéo. Étude comparative franco-québécoise, master’s thesis in law, Université Laval / Université Paris-Saclay, 2022
• A. Thorel, Le bouleversement engendré par le joueur-créateur au sein de l’univers du jeu vidéo : étude comparative franco-canadienne, dissertation, Université Laval, Quebec, Canada, 2023

Online sources

• Nintendo’s guidelines for the publication of game content on online video and image sharing platforms, Nintendo, 2018 (updated 2024)
• BertieFormation, « Jeu vidéo : l’importance des communautés »
• F. Sanson, « La CJUE précise la notion de « communication au public » »

Aaron OLIELCo-founder, student in intellectual property and video game law

https://lexludica.com/en/articles/sharing-video-game-content